Feds say Eureka pot ordinance illegal

The Eureka City Council is slated to reconsider its medical marijuana ordinance Tuesday night after receiving a letter from the U.S. Department of Justice threatening possible legal action. The letter from U.S. Northern District Attorney Melinda Haag warns that — despite state law legalizing marijuana for medical purposes — the substance remains illegal under the federal Controlled Substances Act, classified as a Schedule I drug along with heroin and other narcotics. While Haag wrote that the Department of Justice will not focus limited resources on “seriously ill individuals who use marijuana as a part of a medically recommended treatment regimen,” she made no such promises with regard to Eureka.

”The department is concerned about the city of Eureka’s creation of a licensing scheme that permits large-scale industrial marijuana cultivation, processing, and distribution, as it authorizes conduct contrary to federal law and threatens the federal government’s efforts to regulate the possession, manufacturing and trafficking of controlled substances,” Haag wrote. “… If the city of Eureka were to proceed, this office would consider injunctive actions, civil fines, criminal prosecution and the forfeiture of any property used to facilitate a violation of the (Controlled Substance Act).” Eureka asked for DOJ input The department’s letter generally mirrors those recently sent to the cities of Oakland, Iselton and Chico in response to plans to permit large-scale marijuana grows, but with one notable difference — while the other cities’ actions drew the attention of the U.S. Attorney’s Office, Eureka solicited it.
Community Development Director Rob Wall said he was asked to contact Haag’s office after hearing in July that Chico had received a letter warning it not to proceed with the permitting of two 10,000-square-foot growing operations. Wall said because Eureka’s ordinance does not include a size limit for growing operations, city staff was unsure what the Chico letter meant for Eureka.

”I got direction to write a letter to the Northern District Department of Justice attorney regarding the size limit,” Wall said, adding that the direction came from City Manager David Tyson, but may have “come from above” him. Wall’s letter drew a prompt response from Haag, who said the department maintains the authority to enforce federal law, including that which makes it illegal to manufacture and distribute marijuana and to “conspire to commit any of the crimes” set forth in the Controlled Substances Act. Chico City Manager David Burkland said his city council has introduced an ordinance seeking to rescind the portions of its medical marijuana ordinance dealing with dispensaries and grow operations in light of its correspondence with the U.S. Attorney’s Office. The council, he said, is slated to consider formally adopting the ordinance on Tuesday.

Burkland said there were two words that really ruled the debate in Chico — “facilitating” and “deterrent.” First, he said, the federal government argued that Chico was “facilitating” the cultivation and sales of marijuana and could be held criminally liable. Then, he said, there was the use of the word “deterrent” during the meeting among him, the Chico city attorney, its police chief and the U.S. Attorney’s Office. ”They are looking for communities they would go after, which could include staff and or elected officials, as a deterrent to send a message to other communities,” Burkland said. “He made it clear, at least, what their intent was. … I was told by the U.S. attorney that they, the U.S. attorneys, are getting a lot of pressure from Washington to control this. They want to ratchet it down, I think.”

Burkland said he walked away from the meeting truly worried Chico’s ordinance might expose city staff and council members to criminal liability and supported staff’s recommendation to repeal the dispensary portion of ordinance. Staff recommended the council return to the subject in six months to review what, if any, federal actions are taken in other areas. Eureka first in region to receive such a letter

Eureka seems to be the first city in the region to receive such a letter from the federal government. Arcata Community Development Director Larry Oetker said Eureka’s neighbor to the north hasn’t received any federal input on its ordinance, which, like Eureka’s, regulates residential grows with a land-use approach and permits a certain number of dispensaries and cultivation facilities. Arcata also hasn’t asked the U.S. Attorney’s Office to weigh in on the issue. Humboldt County Deputy County Counsel Davina Smith said the county also hasn’t received, or requested, input from the federal government on the county’s ordinance, which is currently being crafted.

Oetker said he’s well aware of the letters that have gone out to other municipalities and their content. ”I’m familiar with the issues,” he said. “It’s definitely a concern to me.” Local attorney and medical marijuana activist Greg Allen said he’s very disappointed Eureka’s city council will reconsider its ordinance Tuesday. He said it’s baffling the city contacted the U.S. Attorney’s Office on the issue. ”What’s the U.S. Attorney’s Office going to say?” he asked. “Frankly, that’s an automatic. I see it as ridiculous.” Allen said the U.S. Attorney’s Office has taken a hands-off approach in Los Angeles, San Francisco and San Diego, all of which have large numbers of dispensaries operating. It’s difficult to imagine, he said, that the federal government would have targeted Eureka with those bigger fish in the sea.

”It’s brutally clear to me that that letter was sent to the U.S. attorney with the expectation of getting back the response they got,” he said. The process of creating Eureka’s ordinance was contentious at times and saw the current city council enact some revisions to the ordinance after it was adopted by the previous council just a couple of months before the November election. City staff is now looking for direction from the council on how to proceed, and is suggesting three options: proceed with the ordinance as written, place a moratorium on the chapter concerning the cultivation and distribution by collectives, or modify the ordinance to remove the cooperatives and collectives portion entirely. While the council gave three groups the go-ahead to apply for conditional use permits to operate dispensaries within the city, currently only one is in the midst of the application process.

The Humboldt Wellness Center is looking to open a 6,600-foot dispensary, with on-site cultivation, in the 200 block of Fourth Street that will serve about 2,000 patients. Kellie Dodds, the center’s director, said she understands the council has the authority to just “nix the whole thing,” but said it would be a shame as the community has gone through so much — and staff has invested so much — in bringing the ordinance to this point. ”I think it would be a huge disappointment and a black eye for the city of Eureka,” she said. “I don’t think they want to be known in history as the city council that denied safe access to patients.”

Allen said Eureka could face some lawsuits if it decides to back out of the ordinance now, as businesses like Dodds’ have already spent money navigating the permit process. Further, Allen said, California law is very clear that elected officials’ duty is to state law — even if it conflicts with federal law — in all areas that an appellate court or higher has not ruled unconstitutional. Medical marijuana advocates — including Allen — argue that the U.S. Attorney’s Office is simply posturing with its letters to local governments and has no intent of actually prosecuting city staff or elected officials for enacting and carrying out these types of ordinances. The federal government has taken no such action to date, they argue, and it seems unlikely it would start now.

Down in Chico, Burkland said he’s heard that argument from many people. ”What I have said to them, directly, is that this is a new day,” he said, adding that plans to permit six large greenhouses in the 800-person town of Iselton and proposals to building grow operations larger than 100,000 square feet in Oakland have changed the conversation. “I believe things have evolved. What they’ve seen is things starting to get out of hand.”